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On 13 December 2012 the Employment Appeals Tribunal (EAT) heard an interesting case concerning Sunday working and religion.

The EAT makes clear from the outset of there judgment that there is no “ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other.”  But there are lessons for both employees and employers to learn.

  1. The questions remain to be determined in the specific circumstances of this particular case alone.
  2. That said one very clear point has been restated; varying a contract by working practice leads to ambiguity and can weaken the case for either party.  in this case, the employee.  Parties should agree to vary contractual terms by written agreement.

What were the circumstances?

In 2007 a care worker in at a registered children’s home, the Brightwell under a contract under which she could be required to work on Sundays.

The home provided short residential breaks for children with serious disabilities and complex care needs, including such as challenging behaviour, medical needs, feeding difficulties and the like.  A minimum standard set nationally requires that the staff in day‑to‑day contact with such children at such a home should include both genders, and that the staff left in charge of the home should have substantial relevant experience.

The home was open 7 days a week, 24 hours a day in general.  There was a maximum of eight and sometimes no more than four or five children staying there.  Staff worked in 3 shifts: morning, afternoon and night, covering the 24 hours.  Three members of staff would be on duty at any one time: a team leader and two residential care officers.  Sometimes it was necessary to add another member of staff.

Rotas for their work were organised over a three‑week period.  Staff worked one long week (seven days and no days off), then one regular week (five days on two days off); then one short week (three days on, four days off).  They worked two of the three weekends in each rota: that is, each person worked four weekend days every three weeks.  Once the Claimant had been recruited there were five fulltime members of staff.  But there were nine staffing posts.  Bank and agency staff filled the four vacant positions.  The cost to Merton for those staff to work weekends, rather than fulltime staff, was higher than it was for weekdays.

The employer, Merton, required that continuity of care should be ensured insofar as possible noting that a lack of such continuity increases the risk of significant behavioural change in those children who have difficulty in communicating going unnoticed.

For some two years the employer accommodated the care workers’ wish, as a Christian, not to work Sundays’ but then  required her to work as contractually obliged.

After the employee began work matters came to a head.  Internal discussion occurred.  The Claimant raised a grievance about the approach of Merton.  Ultimately, by 22 June 2009,  Management rejected the grievance and said that the Claimant would be scheduled to work two weekends in three in accordance with the normal rota with effect from 13 July 2009.  That would involve her actually having to work on a Sunday as she had not hitherto actually been required to do.  She did not work on the Sundays she was rostered.  Disciplinary action followed, which included a final written warning in early 2010.

An appeal against that was rejected on 25 May 2010.  Five days later the Claimant resigned.  She did so with express regret.  We should mention that there was never any question of the quality of the Claimant’s work nor her personal integrity.

At Tribunal the employees recollection of the contractual agreement was that when offered the job a promise had been made to her that she need not work Sunday shifts.  Management thought that it had said it was not possible to alter the rota arrangements we have described, but recognised that it was likely to be possible that the rota could be worked so that the Claimant could work every Saturday and have every Sunday as a day off.  This fell short of a promise never to require the Claimant to work on Sunday – but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.  The Tribunal accepted that the employer’s version was correct.scales

Brief historic  background to Sunday working

‘In days gone past an employer would have been free to have dismissed an employee for failing to observe their contract, irrespective of religious scruples, such as observing the Sabbath (the fourth Commandment).  The Employment Equality (Religion or Belief) Regulations 2003 (the Equality Act 2010 had not yet come into force.) have changed that landscape making it no longer open to an employer to require staff to work on Sunday and thereby cause disadvantage to those who are Christian unless the employer can show that the requirement is objectively justified.

The case of Cherfi v G4S Security Services Limited , makes clear ‘the requirement of justification must be understood as being in respect of the group as a whole.  That is, all Christians.

That standard has to be satisfied in accordance with the test of proportionality as it was called by Mummery LJ in R (Elias) v Secretary of State for Defence that is, “ it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”  This judgement takes cognisance of European  Court of Justice  (see link below: Bilka‑Kaufhaus GmbH v Weber von Hartz) which says  “the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end.”

 

Reference and citation:

R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213

Cherfi v G4S Security Services Limited [2011] UKEAT/0379/11,

Bilka‑Kaufhaus GmbH v Weber von Hartz [1986] ICR 110  ECJ Case 170/84

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